State v McCleave, (03-278) 11/18/2003

Appeal by defendant from judgment entered 20 August 2002 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 6 October 2003.

Attorney General Roy Cooper, by Special Deputy Attorney General William P. Hart and Assistant Attorney General Wendy L. Greene, for the State.

Bryan Gates, for defendant-appellant.

GEER, Judge.

    This appeal primarily addresses the question whether an indictment for breaking and entering a motor vehicle must allege the lack of consent of the owner of the motor vehicle. We hold that such an allegation is not required.
    Defendant Andra McCleave was charged with breaking and entering a motor vehicle. In a separate bill of indictment, defendant was charged with attaining the status of habitual felon. A jury found defendant guilty of the breaking and entering charge. Following the jury verdict, defendant admitted his habitual felon status in a guilty plea, but reserved the right to appeal his conviction of breaking and entering a motor vehicle. The trialcourt sentenced defendant to a minimum of 97 and a maximum of 126 months imprisonment.
    The State's evidence tended to show that in the early morning hours of 8 November 2001, Patrick Waddell was driving on Seventh Street in Charlotte, North Carolina. As Waddell approached a stop light at the intersection of Seventh and College Streets, he heard the sound of "someone's car window being busted out[.]" Waddell looked to his left and saw two men standing next to a sport utility vehicle parked at a meter. One man was wearing a hooded light gray sweatshirt and the other was wearing a blue Carolina jacket.
    Waddell proceeded to drive through the intersection when the light turned green, but continued to observe the two men. He subsequently saw the person in the hooded grey sweatshirt reach inside the parked vehicle and pull out a leather jacket.
    Waddell notified police officers at a nearby parking lot of what he had seen, including a description of the two men. Four police officers went to College and Seventh Streets and apprehended two men meeting the description. Waddell identified them as the two people he had seen near the sport utility vehicle. The man wearing the hooded gray sweatshirt, later identified as defendant, was then wearing a leather jacket over his sweatshirt.
    The owner of the sport utility vehicle was located at a nearby night club. He informed the police officers that the leather jacket worn by defendant had been inside his vehicle. At trial, the owner of the sport utility vehicle testified that he did not give defendant or his accomplice authority to enter his car.    Defendant contends first that the indictment charging breaking and entering a motor vehicle was defective. The indictment at issue reads:
        THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 8^th day of November, 2001, in Mecklenburg County, Andra Maurice McCleave unlawfully and wilfully did feloniously break and enter a motor vehicle, to wit: a 2000 Mercury Mountaineer, belonging to John Connor, which contained things of value, with the intent to commit larceny therein.
Defendant argues that lack of consent is an essential element of breaking and entering a motor vehicle and, therefore, the failure of the indictment to include the owner's lack of consent was a fatal flaw in the indictment requiring its dismissal. We disagree.
    "The purpose of the indictment is to inform the defendant of the charge against him with sufficient certainty to enable him to prepare his defense." State v. Wyatt, 48 N.C. App. 709, 711, 269 S.E.2d 717, 718 (1980). An indictment is fatally defective "if it wholly fails to charge some offense . . . or fails to state some essential and necessary element of the offense of which the defendant is found guilty." State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (citation omitted; internal quotations omitted), disc. review improvidently allowed, 349 N.C. 289, 507 S.E.2d 38 (1998).
    N.C. Gen. Stat. § 14-56 (2001), the basis for the indictment, provides:
        If any person, with intent to commit any felony or larceny therein, breaks or enters any . . . motor vehicle . . . containing any goods, wares, freight, or other thing ofvalue, that person is guilty of a Class I felony.

The indictment precisely tracks the language of the statute.
    In State v. Carver, 96 N.C. App. 230, 232, 385 S.E.2d 145, 147 (1989), this Court held that N.C. Gen. Stat. § 14-56 "does not make absence of consent an element of the offense." The indictment in this case was not, therefore, required to allege an absence of consent. See also State v. Pennell, 54 N.C. App. 252, 259, 283 S.E.2d 397, 402 (1981) (indictment for burglary with explosives was sufficient even though it did not allege that defendant's entry into building was without the consent of the owners), disc. review denied, 304 N.C. 732, 288 S.E.2d 804 (1982). Here, the indictment alleged the essential elements of the offense when it alleged that defendant broke and entered a motor vehicle, containing things of value, with the intent to commit larceny therein. The indictment was sufficient to charge the crime and to provide defendant with enough information to prepare for trial.
    Defendant also argues that his sentence as an habitual felon is disproportionate to the crime and, therefore, in violation of the Eighth Amendment's prohibition of cruel and unusual punishment. We disagree.
    Contrary to defendant's argument, he was not sentenced to a term of 97 to 126 months for stealing a leather jacket, but rather because he had attained the status of a habitual felon. In State v. Todd, 313 N.C. 110, 117, 326 S.E.2d 249, 253 (1985), our Supreme Court "reject[ed] outright the suggestion that our legislature is constitutionally prohibited from enhancing punishment for habitualoffenders as violations of constitutional strictures dealing with . . . cruel and unusual punishment . . . ." This Court has likewise held that "[h]abitual felon laws have withstood scrutiny under the Eighth Amendment to the United States Constitution in our Supreme Court and in the United States Supreme Court." State v. Cates, 154 N.C. App. 737, 741, 573 S.E.2d 208, 210 (2002), disc. review denied, 356 N.C. 682, 577 S.E.2d 897 (2003).
    Here, defendant pled guilty to attaining his habitual felon status and the trial court properly sentenced defendant within the presumptive range to 97 to 126 months based on his having attained the status of habitual felon under N.C. Gen. Stat. § 14-7.6 (2001). Defendant's sentence is not "grossly disproportionate" to his crime such as to violate defendant's right to be free from cruel and unusual punishment. See also State v. Streeter, 146 N.C. App. 594, 599, 553 S.E.2d 240, 243 (2001) ("Our Supreme Court has found that as long as the judge sentences within the limits established by the legislature, the Eighth Amendment is not offended."), cert. denied, 356 N.C. 312, 571 S.E.2d 211 (2002), cert. denied, U.S. , 154 L. Ed. 2d 1071 (2003).

    No error.
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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